Writing about the law has its challenges. Watch:
Irrevocable life insurance trust.
If you made it to “trust,” you probably made it further than about 90 percent of the population, even if you don’t know what an irrevocable life insurance trust is, or have any idea what a majority of those words mean.
The law can be, and usually is, very boring in practice. But that doesn’t stop writers from filling novels, movies, and television shows with endless scenes of courtroom drama. Two sides fighting, the truth revealed, the wicked punished and the innocent set free! What could be more dramatic?
Unfortunately, this drive for the drama is often painfully unrealistic. I was recently talking to a movie critic friend of mine about courtroom scenes and how they’re portrayed. We talked about some basic procedures, the rules of evidence, burdens of proof, and other topics, but of course, accuracy is not necessarily the main goal of fictional portrayals of courtrooms. Never the less, there were two films that I thought really emphasized how accurate, and inaccurate, writers can get it.
In its portrayal of grizzled Federal Marshall “Rooster” Cogburn, True Grit contains one of the most accurate courtroom scenes in recent memory. Early in the film, Marshal Cogburn is giving courtroom testimony in a criminal case. The testimony begins as Cogburn answers questions from a prosecutor. After hearing some of the questions, or answers, the defense counsel offers objections and the judge makes rulings.
After the prosecutor finishes his questions, the defense attorney begins asking the Marshall some of his own. Like the previous round, the other attorney (the prosecutor this time) stands up occasionally and states objections. The judge dutifully rules on these until the cross-examination ends.
Now, there are a lot of scenes like these in movies. Attorneys ask witnesses a lot of questions, and those witnesses answer. Opposing counsel also stands up and objects, and judges rule on those objections.
What makes the scene in true grit so good is its accuracy, and how it captures the presentation of the two opposing stories that lie at the heart of every trial.
I think there is a common misperception in the general public about criminal trials, and perhaps trial in general. That misperception holds that trials are searches for truth. The witnesses on the stand are there to reveal shocking details of the crime, or the unjust nature of the corrupt politician, or any number of scenarios that drive the drama.
A trial is anything but that. Trials boil down to two sides presenting their version of what happened. Those sides ask the jury (or sometimes just the judge) to decide which one of them is correct. Of course, one side has the duty to prove its story while the other side only has to shoot that story down, but that’s the essential process. Attorneys aren’t asking witnesses questions to find out what happened. Those questions come way before the trial ever takes place.
And as far as the process goes, True Grit is spot-on. For example, when an attorney puts a witness on the stand, that attorney gets to start the testimony process by asking questions. The attorney can only ask questions that are not leading, meaning the attorney’s questions can’t imply an answer. But, when those questions end and the other attorney gets to start asking questions, leading questions are perfectly acceptable.
This difference in questions, and the types of answers they get, gives examinations a different tone depending on what side is currently conducting the interrogation. True Grit captured this dynamically perfectly.
Not only that, but the actual questions, objections, and rulings are excellent. That’s what lawyers would actually ask, that’s how opposing attorneys would object, and that’s how judges would rule.
The True Grit courtroom scene only lasts about 7 minutes or so, but if you want to see a great example of what goes on in a court, you need to watch it.
(Another notable accurate portrayal that I didn’t have time to write about: My Cousin Vinny. Particularly the scene where Joe Pesci’s character cross-examines the old lady witness, and the scene where the prosecution presents its evidence in the probable cause hearing.)
It’s hard to tell exactly what’s wrong, or right, with the courtroom scene in Daredevil because it’s so vague as to almost be meaningless. (Note: I’m talking about the first courtroom scene. I recently skimmed through the movie again, so I know there are at least two. Also, I think there is a more recent director’s cut, which I have not seen.)
Why meaningless? Courtroom accuracy aside, we, as the viewer, never have an idea what is going on or why anyone is in the courtroom.
In the movie, Matt Murdoch (AKA Daredevil) is a blind attorney who, through a voiceover narration, we learn “only defends the innocent.”
If you’re still reading after that revelation, you’re either not an attorney or have much of your brain residing in fantasy land. But we’ll gloss over the idea of defense attorneys who only defend the innocent for a moment, and skip ahead to Mr. Murdoch’s role in the trial.
Apparently, a man named Mr. Quesada is on trial for rape. I say apparently because we don’t really know what’s going on. Murdoch is questioning Quesada on the stand. At one point in the interrogation, Murdoch asks: “Are you aware that perjury is a crime?” Quesada’s attorney objects (thank god) and the two attorneys get into a brief exchange in which Murdoch says his client, the alleged rape victim, is not on trial.
What is going on? Is this a criminal trial for rape? If so, is Murdoch a prosecutor? If he is a prosecutor, the rape victim is not his client. Prosecutors work for the state. They don’t represent victims, and they don’t have clients. So, if he’s not the prosecutor, who is? Quesada’s lawyer is there to defend him, but who is representing the state? And if Murdoch isn’t a prosecutor, why is he even talking, much less interrogating the defendant?
If it’s a civil trial, which seems more likely, why are we told that Murdoch is a defense attorney who only defends the innocent? The only defense attorney in the courtroom scene was the attorney representing Quesada. If this is a civil case, Murdoch is acting as the plaintiff’s attorney, not a defense attorney.
After the trial ends, Murdoch says that Quesada “escapes justice.” If it’s a civil trial, doesn’t this mean that Murdoch was unable to present a case that persuaded the jury? (In other words, Murdoch is a bad lawyer.) Does “escaping justice” imply that the court system is broken and the civilly liable people avoid having to pay damages? When people talk about justice, especially in the case of rape, aren’t they talking about prosecuting the rapist, securing a conviction, and imposing a lengthy prison sentence?
I don’t know. And that’s the problem.
This is the kind of courtroom scene you might expect to get from someone who has never really a real trial, or who has only gleaned legal process tidbits from other films or television shows. There’s nothing accurate about it. It’s all just a way to present a dramatic situation, to portray “the law” as something that can propel a plot forward.
(Another notable inaccurate depiction: The Untouchables. When Al Capone’s (Robert De Niro) attorney decides to suddenly change a plea in the middle of court after the trial has already begun. Not only can you not just simply stand up and do this, but your client has to agree to it, as does the court. Doing this gets you disbarred.)